Supreme Court to Hear (and Likely Uphold) a Challenge to the Voting Rights Act of 1965

On the heels of an election season in which voting rights were a hot-button issue, the United States Supreme Court is now poised to ratchet up the debate even further. On November 9, 2012, the Court granted certiorari in Shelby County, Ala. v. Holder,1 a case involving a challenge to the 2006 extension of certain portions of the Voting Rights Act of 1965 (“the Act”).2 Specifically, the Petitioners in Shelby question the continued constitutionality of Section 5 of the Act, which requires certain jurisdictions with a history of voter discrimination to obtain “preclearance” from the federal government before implementing any change to their voting practices or procedures.3 Whether a jurisdiction is considered to have a history of voter discrimination (and therefore subject to preclearance) is determined by the Act’s nearly 50-year-old “coverage formula.”4 Petitioners argue that the retention of such an outdated standard exceeds Congress’s enforcement authority granted by the Fourteenth and Fifteenth Amendments.5

Given the current Court’s recent and harsh criticism of Congress’s failure to update the Act’s coverage formula, 6 the Shelby Petitioners’ arguments will be falling on receptive ears. It is therefore likely that the Court will uphold the challenge, thus dramatically altering the federal government’s oversight authority over state and local voting regulations. Shelby has already sparked significant national attention from interest groups and states alike, and is shaping up to be the major ruling of the upcoming term.7

Shelby is only the latest stop on a long and winding road. Congress passed the Voting Rights Act in an effort to definitively end the deliberate and sustained disenfranchisement of African-Americans after Reconstruction.8 Following the passage of the Fifteenth Amendment in 1870, which guaranteed all Americans the right to vote regardless of “race, color, or previous condition of servitude,” 9 Southern states responded by enacting measures designed to disenfranchise African-Americans in all but name.10 States enacted poll taxes, imposed literacy requirements, established property qualifications, and engaged in rampant gerrymandering, all in an effort to effectively deny African-Americans the right to vote without explicitly stating so. 11 After nearly 100 years of unsuccessful judicial and legislative efforts to combat these practices, Congress decided that “sterner and more elaborate measures” were required in order to remedy the “insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of our Constitution.”12

Congress’s final product, The Voting Rights Act of 1965, was indeed “sterner and more elaborate” than any measure before. The Act not only forbids all voting regulations with discriminatory intent, it forbids all regulations with discriminatory “results.” 13 The Act permanently bans poll taxes,14 prohibits voter intimidation and coercion,15 and provides for civil and criminal sanctions for violations. 16 On top of these nationwide, permanent provisions, the Act also implements “a complex scheme of stringent remedies aimed at areas where voting discrimination has been the most flagrant.”17 The targeted, temporary provisions only apply to “covered” jurisdictions as defined by Section 4(b).18

The most stringent of these provisions is the “preclearance” system established by Section 5.19 Under Section 5, a covered jurisdiction may not implement any changes to its voting regulations, unless those changes are first approved by the Attorney General.20 The change will only be approved if a jurisdiction can prove that the change “neither ‘has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.'” 21 If the Attorney General objects to the proposed change, the jurisdiction may urge him to reconsider, or apply for de novo consideration from the federal District Court in Washington, D.C.22 If neither the Attorney General nor the court approve the change, the jurisdiction may not implement it.23

Section 4(b) originally provided that a jurisdiction was covered, and thus subject to preclearance, “if it maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” 24 The jurisdictions originally covered under this formula were: (1) the entire states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia; (2) thirty-nine counties in North Carolina; and (3) one county in Arizona. 25 The fact that most of the covered jurisdictions were in the Deep South was no accident—Congress developed the formula specifically in order to target those jurisdictions because they had the worst history of racially motivated voter disenfranchisement.26

Congress, in an effort to keep coverage fluid over time, allowed for a covered jurisdiction to “bail out” of the preclearance requirement, as well as for a court to require a previously non-covered jurisdiction to “bail in.”27 In order to “bail out” of the preclearance requirement, a covered jurisdiction must obtain a declaratory judgment “that for the previous ten years, [the jurisdiction] has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations.” 28 Additionally, the jurisdiction must establish that it has made “constructive efforts” to combat disenfranchisement on the basis of race.29 Conversely, a court may require a non-covered jurisdiction to “bail in” to the preclearance system if the court finds that “violations of the Fourteenth or Fifteenth amendment justifying equitable relief have occurred within the jurisdiction.”30

The preclearance system, as originally enacted, was only supposed to be in place for five years.31 However, Congress has reauthorized the system four separate times: in 1970 (for five years), 1975 (for seven years), in 1982 (for 25 years), and most recently in 2006 (for 25 years).32 In the 1970 and 1975 extensions, the original coverage formula’s trigger date for an illegal use of a discriminatory voting test and less than 50% voter turnout in the last presidential election was updated to 1968 and 1972, respectively.33 Despite lengthy debate over the subject, neither the 1982 nor the 2006 extensions updated the coverage “trigger” any further.34

Due to Congress’s reluctance to update the coverage trigger, the Act currently subjects a jurisdiction to preclearance if the jurisdiction maintained a discriminatory voting test or device in 1964, 1968, or 1972, and had less than 50% voter in that year’s presidential election. 35 Today, there are 16 states affected by the Act: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas are covered in their entirety, along with portions of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.36

After the 2006 extension, the Supreme Court expressed its concern that the preclearance system is no longer viable. In 2009, the Court decidedNorthwest Austin Municipal Utility District v. Holder, a case in which a small utility district sought bailout under Section 5. 37 The utility district argued that all political subdivisions should be able to bail out, not just jurisdictions which register their own voters.38 In the alternative, the utility district argued that if the Section 5 did impose such a limitation on bailout, then the Act was unconstitutional. 39 The Court agreed with the utility district, and held that all political subdivisions were allowed to seek bailout.40 However, under the doctrine of constitutional avoidance, the Court declined to reach the constitutionality of Section 5 and confined its holding to the bailout issue.41

Even though the Court did not decide the constitutionality of Section 5, Justice Roberts clearly signaled that it was time for a change. Although Chief Justice Roberts praised the positive effects the Act has had against voter discrimination, he stressed that the nation is a much different place today than it was in the 1960’s.42 Accordingly, what made sense in 1965 no longer makes sense in today’s more progressive society. As Chief Justice Roberts views it, the Act “imposes current burdens and must be justified by current needs.” 43 Those current needs are no longer being served, because “the evil that [Section 5] is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”44 Although Chief Justice Roberts cautioned against complete abandonment of federal oversight authority, 45 he clearly is of the opinion the use of the outdated coverage formula is no longer constitutionally permissible.

Although the Court did not decide the constitutionality of Section 5 in Northwest Austin, that issue is now squarely before court in Shelby. The petitioners in Shelby have directly challenged the constitutionality of the preclearance system rather than its procedural mechanisms.46 Accordingly, the “serious constitutional questions [addressed by the Northwest Austin Court] may no longer be ignored.”47 So far, both the district and appellate courts have written lengthy opinions which upheld Congress’s continued use of the coverage formula.48 Both courts relied on the fairly deferential standard set forth by earlier jurisprudence concerning the preclearance system to ultimately conclude that the continued use of the coverage formula was proper.49

But the essential message of Northwest Austin—that the Court is hostile to the continued use Section 5—indicates that the Court is poised to reverse. Thus, Shelby will likely dramatically curtail the use of the preclearance system. Chief Justice Robert’s opinion in Northwest Austin was joined­ by seven other Justices.50 Justice Thomas, the lone dissenter, only did so because he would have overturned Section 5 as unconstitutional because it went beyond the enforcement authority of the Fifteenth Amendment. 51 Therefore, even with two members of the Northwest Austin majority having been replaced by more liberal Justices,52 the Court will likely accept the invitation it previously declined, and strike down Section 5 in Shelby.

The extent of the Court’s likely ruling, however, remains to be seen. The limited question certified to the Court is a fairly narrow one. The Court will be deciding “[w]hether Congress’s decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section (4)(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments, and thus violated the Tenth Amendment and Article IV of the United States Constitution.”53 The Court could therefore simply require Congress to update the coverage formula yet still uphold the preclearance system itself, rather than rendering both invalid.54 But whichever way the Court comes out, the decision is sure to be hotly debated.